The refusal this month by Texas House Republicans to change two El Paso legislative districts seems likely to become part of voting-rights litigation against the state -- and it could be used by Texas minority groups as part of a new approach to the law in the wake of a U.S. Supreme Court ruling last week.

Even though the Supreme Court struck down a key part of the 1965 Voting Rights Act, leaders of Texas minority groups have vowed to press forward with lawsuits over congressional and legislative boundaries they consider discriminatory.

The fight will continue Monday morning, when litigants are due to appear in court in San Antonio.

REPORTER

Marty Schladen

Federal courts there and in Washington, D.C., had determined that maps passed in 2011 by the Republican-controlled Legislature illegally diluted minority votes. But those rulings were vacated last week when a 5-4 majority of the Supreme Court ruled that Texas and other states with histories of discrimination were unfairly singled out for scrutiny because "coverage formulas" hadn't been updated in 40 years.

Texas minority groups maintain that voter discrimination in the state continues to the present day. They claim that the redistricting process used in the special legislative session that ended last week provides further evidence that Republicans have worked to dilute the voting strength of Texas's surging minority population.

Advertisement

A piece of that evidence might have emerged on June 20 when Republicans blocked an agreement to move Hispanic voters from Rep. Marisa Marquez's District 77 to Rep. Joe Moody's District 78, Rep. Trey Martinez Fischer, D-San Antonio, said Friday. Fischer is head of the Mexican American Legislative Caucus, a leading plaintiff in litigation over Texas redistricting.

Fischer and others were mystified that Redistricting Committee Chairman Drew Darby, R-Amarillo, refused the amendment after accepting others offered by Republicans. Fischer said that before the session, Darby said he would entertain changes that affected legislators had agreed to.

"Chairman Darby never gave a reason for not accepting the Marquez-Moody amendment," Fischer said.

That and other aspects of the redistricting process could prompt a federal court in San Antonio to require Texas to get pre-approval for voting changes even after the Supreme Court threw out the requirement under the old formula, Dallas redistricting lawyer Michael Li said Friday.

Minority groups might be pinning their hopes on such a ruling in the wake of last week's Supreme Court decision.

Pre-approval is intended to ensure that new rules don't make it harder for minorities to vote or have the effect of making their votes count less.

Texas, which has a lengthy history of violating the Voting Rights Act, only got out from under such a "pre-clearance" requirement on Tuesday when the Supreme Court invalidated the Section 4 formula, under which Texas and some other Southern states had to get Section 5 clearance for voting changes from the federal courts or the U.S. Justice Department.

But Section 3 of the Voting Rights Act allows courts to decide on their own that a state's history of discrimination is bad enough that rule changes must be pre-cleared by the court, Li wrote last week on his influential blog, Texas Redistricting. Under such a ruling, the court would have to pre-approve minor changes, such as the location of polling places, and major ones, such as how legislative and congressional district boundaries are drawn.

Problems with El Paso

On June 20, as the House debated the amendment involving El Paso Districts 77 and 78, Moody noted that his district has repeatedly drawn the attention of the courts, including from Supreme Court Justice Sonia Sotomayor.

"This has been in litigation, and it has been thrown out two times," Moody said. He explained that the proposed swap with District 77 would address legal deficiencies by making his a Northwest-Northeast district and Marquez's a "West-centric" district that isn't disrupted by the Franklin Mountains.

The switch would do a better job of keeping together "communities of interest" than the maps on which Moody and Marquez ran in 2012 and which Gov. Rick Perry signed into law on Thursday, Moody said.

The Moody-Marquez agreement has political implications that are probably the cause of disagreements over it. At stake in the redistricting fight is political power in the form of seats in Congress and the Texas Capitol.

Everybody involved in redistricting litigation has agreed that in Texas, minority populations almost always vote for Democrats, the U.S. District Court for the District of Columbia wrote last year.

El Paso is 81 percent Hispanic and 3 percent black, yet District 78 has been a toss-up between the parties.

Under Moody's amendment, the percentage of registered voters with Hispanic surnames in his district would increase from 54 percent to 56 percent. The proportion in Marquez' district would drop from 66 percent to 64 percent.

Democrats were particularly incensed that the rejection came after Darby accepted other amendments involving Republicans.

One involved a trade between a Dallas Democrat and a neighboring Republican that critics said removed a potential primary challenger from the Republican's district.

None of the amendments accepted by Darby seemed likely to cost the GOP any of its current or future power.

"I thought it was unfair," Marquez said of the rejection of her amendment. "I can only assume it's because we're members of the Democratic Party."

Asked to respond, Darby's chief of staff, Jason Modglin, referred to Darby's comments during the debate.

"I think this was done for personal reasons -- just swapping precincts within the districts," Darby said then of the Moody-Marquez proposal. "There's no legal basis to do that."

Moody responded that the most recent attempt to fix his problematic district, the map drawn by the San Antonio district court, was an interim measure and necessarily imperfect.

But Darby didn't see it that way.

"The San Antonio court fixed El Paso," he said. "They fixed those problems. The Moody amendment tries to unwind that fix."

Earlier in the session, in staking out a negotiating position, Fischer said his group would settle for maps that would create one to two more congressional districts and five to seven more Texas House seats in which minorities had the power to elect a candidate.

In striking down the Moody-Marquez amendment, Republicans seemed unwilling even to accept consolidation of a district a minority Democrat already held.

Li said it didn't make sense for Darby to accept other amendments but not the Moody-Marquez one.

"It gives the lie to the idea that there was any logic in what they were doing," Li said. "Why would you not take an amendment that addressed a mountain in the middle of the city?"

Texas' difficulty with newcomers

Regardless of the party in power, every time the Legislature has drawn districts since there was a Voting Rights Act, Texas has run into problems with the federal courts.

That didn't change in 2011, when the Legislature drew maps to accommodate Texas' explosive population growth.

It grew the fastest of any state, and 90 percent of that growth consisted of minorities. But minority groups claim the legislative maps did not reflect the changing face of Texas in terms of seats in Congress or the Legislature.

Last year, the Washington, D.C., federal court agreed, ruling that the Texas Legislature intentionally discriminated. That ruling was vacated after the Supreme Court's ruling, but plaintiffs still intend to use it in their litigation against the state.

With a few variations, the maps Perry signed into law last week were the same as the interim maps the San Antonio court drew up last year so that Texas could hold a delayed primary.

Darby, Perry, Attorney General Greg Abbott and other Republican leaders say that since the maps were drawn by the San Antonio court -- under instructions by the Supreme Court -- they pass muster under the Voting Rights Act.

Fischer and others maintain that as recently as last month, the San Antonio court said the maps were preliminary and did not resolve all the problems with the 2011 legislative maps.

More fodder?

When the plaintiffs return to court Monday, they are likely also to say Republicans' conduct during the special session provided more evidence of discriminatory intent.

For example, rejection of the Moody-Marquez amendment came perhaps an hour after Republicans caucused with Abbott's first assistant.

Democrats on the Redistricting Committee -- including Vice Chairwoman Yvonne Davis, D-Dallas -- had asked Abbott or a representative to testify before the full committee because making the interim maps permanent was his idea.

Abbott never appeared, and Darby said he never asked him to.

"We can't get the attorney general to provide information to the full select committee, yet they can appear before a caucus -- only one caucus," said Davis, chairwoman of the House Democratic Caucus. "It seems like we are never going to have a fair ground to work on because everybody's working against us and our constituents."

Darby did not opt to retain outside counsel for the full committee, and Abbott's representatives wouldn't meet with it. But Darby rejected Demo cratic maps and amendments on legal grounds.

That leaves the question of where he was getting his legal advice and why he didn't share it with the committee, Li said.

Meanwhile, the Texas Legislative Counsel, which did meet with the committee, said there was "serious risk" in parts of the maps the Republicans ended up adopting, Li said.

Plaintiffs in the voting-rights case also are likely to claim that field hearings held during the special session by House and Senate committees are further evidence that legislative Republicans didn't act in good faith.

During the three House field hearings, 430 people testified against the interim maps and just 68 testified in favor, yet the Legislature largely adopted them anyway, Rep. Chris Turner, D-Arlington, said in the June 20 session.

"What is the point of holding hearings?" Turner asked.

Plaintiffs in the lawsuit also will argue that they received unfair treatment by the Senate during the special session, which was initially called with the sole purpose of passing the interim maps.

Lt. Gov. David Dewhurst departed from the chamber's regular-session practice of requiring a two-thirds majority to get a bill to the floor.

With 12 of the Senate's 31 members, Democrats had blocking power during the regular session that they lost when district maps -- and with them, legislative and congressional power -- came up for consideration.

"Courts always scrutinize whether there were procedures in place and did we depart from those procedures," Fischer said.

Li said that by not making more concessions, Republicans might have undermined their legal position.

"It looked like politics as usual," he said. "Clearly it would have been better if they made a more serious effort to fix the map even if it caused electoral harm on the partisan side."

In the wake of last week's Supreme Court ruling, some voting-rights advocates worried that the only way to stop voter discrimination would be through expensive litigation. They said that was especially bad news for local elections because it would be difficult to find the resources to go to court.

But states still run the risk of getting "bailed in" to a pre-clearance requirement under Section 3 of the Voting Rights Act.

Li was asked whether the Texas Legislature, because of its conduct since 2011, might bring the state in for such supervision.

"They are flirting with that," he said.

Marty Schladen may be reached at mschladen@elpasotimes.com; 512-479-6606.